CLP 4 - Bad Character Flashcards
What is the definition of ‘Bad Character’? S.98
“evidence of, or a disposition towards, misconduct on his part, other than evidence which:-
a) has to do with alleged facts of the offence, or
b) evidence of misconduct in connection with the investigation or prosecution of the offence
(Misconduct = the commission of an offence or reprehensible behaviour)
How can bad character be shown?
- Criminal record
- Agreed facts that amount to reprehensible behaviour
- Witness evidence of a reputation for reprehensible behaviour
Can previous acquittals be used as evidence of bad behaviour?
Yes
What are the 7 gateways under s.101 for bad character evidence and which party can use them?
- (a) Agreement - all parties agree to the evidence being admissible (BOTH)
- (b) D adduces the evidence themselves or in reply to cross-examination (BOTH)
- (c) Important explanatory evidence - required to understand the case and value is substantial (P ONLY)*
- (d) Important matter issue between D and P - Done it before - propensity to commit similar offences or be untruthful*
- (e) ‘E did it - co-defendant’s evidence, substantial probative value in relation to D and co-D*
- (f) False impression - evidence to correct a false impression given by D*
- (g) D makes an attack on another person’s character*
*Leave of court required
When will the court not admit “Done it before” evidence of bad character?
If, on an APPLICATION BY THE DEFENDANT to exclude it, it appears to the court that the admission of evidence would have such an ADVERSE EFFECT on the FAIRNESS of the proceedings that the COURT OUGHT NOT TO admit it.
e.g time elasped
What is the leading case for “Done it before” evidence of bad character?
R v Hanson & others
- Does the D’s HISTORY of offending show propensity to commit offences?
- Does that make it more likely they committed THIS offence?
- Is is JUST to reply on convictions of same description of category to be FAIR?
- In any event, would the proceedings be unfair if the evidence were to be admitted?
- no minimum number of convictions.
- Strength of prosecution should be considered
can include evidence after the offence
What is the test for “E done it” evidence of bad character?
Evidence provided by a co-defendant as to the bad behaviour of the defendant.
NOTE: no fairness test.
What is the test for “False Impressions” evidence of bad character ?
- The defendant (or a witness called/questioned by/or relied on by him that he has not disassociated from) has given a false impression.
- Evidence to correct such an impression has a probative value in correcting it.
- Only applies to P evidence
What is the test for “attack on bad character” evidence of bad character ?
Defendant:
- provides evidence attacking someone else’s’ character
- asks questions in cross-examination which are intended to attack,
- defendant attacks someone else’s character
Includes evidence that:
- the other person has committed an offence
- the other person has behaved in a reprehensible way
Only applies to prosecution evidence and fairness test applies
What directions are given to the jury in respect of ‘attack on character’?
- they should not conclude that D was guilty or untruthful merely because has previous convictions.
- a propensity is not enough to show that D committed the offence
What are the s.101(3) safeguards?
The court must not admit evidence under (1) (d) (relevant to important matter between D and P) or (g) (attack on character) if ON APPLICATION by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an ADVERSE EFFECT on the FAIRNESS of the proceedings that the court ought not to admit it.
For example passage of time since conviction.
What are the s.107 safeguards?
Gives court discretion to stop the case if the bad character evidence has been contaminated such that a conviction would be unsafe.
What are the s.110 safeguards?
Court must give reasons in open court for any rulings on bad character.
What happens if there is a dispute over a previous conviction / acquittal?
If UK or EU, may be proved by providing certificate of conviction. Once certificate provided, burden of proof falls on D to show that there was no conviction.
What are the time limits for giving notice if bad character evidence is to be adduced for prosecution evidence?
after not guilty plea 28 days magistrates and 14 day in crown
What are the signs for being untruthful?
Previous convictions not untruthful UNLESS
- The manner of which the previous offence was committed demonstrates that the D has propensity (actively sought to mislead/deceive by making false representations)
- Pleaded not guilty to previous case and were convicted
Can bad character prove guilt alone?
No
P must adduce other evidence to substantiate the claim before jury/mag are allowed to take bad character into account.
When would a D want to introduce evidence of own bad character?
- Only minor previous convictions (don’t want to be made to seem bigger than they are).
- When they were guilty previously and pleaded guilty (shows they accept their guilt).
Explain gateway C - important explanatory evidence
- Prosecution ONLY
- only in limited circumstances
- Only classes as this if: mag/jury would find it IMPOSSIBLE or DIFFICULT to properly understand the case
- Where evidence understandable without bad character it should NOT be admitted.
Explain when evidence should be excluded under gateway D? (commit same crime/untruthful)
- The admission would have such an adverse effect on fairness of proceedings
When?
1. Nature of previous convictions means jury is likley to convict on these alone
2. CPS use to support a case otherwise weak
3. When previous convictions are spent (doesn’t automatically exclude)
Explain gateway f - False character
Only prosecution can use and if found D to have done. Court no power to admiss.
when:
- made in proceedings
- when D being questions at police station
- by witness of D
- any witness in response to Q by D
- any person out of court D adduces evidence from
